Adams v. Deville

Filing 15

ORDER AND REASONS - The Court, having considered the record, the applicable law, relevant filings, and the magistrate judge's 12 Report and Recommendation finds the magistrate judge's findings of fact and conclusions of law are correct an d hereby approves the United States Magistrate Judge's Report and Recommendation and ADOPTS it as its opinion in this matter. IT IS ORDERED that Petitioner Kenneth Adams' petition against Respondent Keith Deville be and hereby is DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH ADAMS,
Petitioner

CIVIL ACTION

VERSUS

NO. 17-506

KEITH DEVILLE, WARDEN
Respondent

SECTION: “E” (5)

ORDER AND REASONS
Before the Court is a Report and Recommendation issued by Magistrate Judge
Michael North recommending that Petitioner Kenneth Adams’ petition for federal habeas
corpus relief be dismissed with prejudice. 1 Petitioner timely objected to the Magistrate
Judge’s Report and Recommendation.2 For the reasons that follow, the court ADOPTS
the Report and Recommendation as its own, and hereby DENIES Petitioner’s application
for relief.
BACKGROUND
Petitioner is an inmate currently incarcerated at the David Wade Correctional
Center in Homer, Louisiana. 3 Petitioner seeks relief from his state court conviction for
attempted aggravated rape. 4 The facts underlying Petitioner’s conviction are as follows. On
January 6, 2013, Petitioner broke into the home of an 83-year-old woman. 5 When the
woman returned home, Petitioner knocked her to the ground, dragged her to a bedroom,
removed her clothing, and attempted to rape her. 6 Petitioner then fled the scene, taking

R. Doc. 12.
R. Doc. 13.
3 R. Doc. 14.
4 State Rec., Vol. 1 of 4, Bill of Information, 4/30/13. Petitioner was also convicted of aggravated burglary,
and simple robbery. Id. In his habeas petition, however, Petitioner challenges only his conviction for
attempted aggravated rape. R. Doc. 1.
5 R. Doc. 12 at 5.
6 Id.
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various items of jewelry. The victim notified the police, who apprehended Petitioner
approximately one-half of a mile from the victim’s home. 7
On March 10, 2014, Petitioner pleaded guilty to the charges against him pursuant
a plea agreement, and was sentenced to twenty-five years at hard labor. 8 On January 6,
2015, Petitioner filed an application for post-conviction relief with the state district court,
which was denied. 9 He then filed an application for a writ of error with the Louisiana Fifth
Circuit Court of Appeal, which was also denied. 10 On September 30, 2015, Petitioner filed
a writ application with the Louisiana Supreme Court. 11 The Louisiana Supreme Court
denied Petitioner’s application on December 16, 2016. 12
On January 19, 2017, Petitioner filed the instant petition for habeas corpus relief. 13
In his petition, Petitioner contends his trial counsel’s performance was unconstitutionally
deficient. 14 Petitioner also maintains his guilty plea was obtained unconstitutionally.15
Petitioner’s application was referred to the U.S. magistrate judge who issued his Report and
Recommendation on September 14, 2017. 16 In his Report and Recommendation,

7

Id.

8 State Rec. Vol. 1

of 4, Waiver of Constitutional Rights Plea of Guilty Form, 3/10/14; Minute Entry, 3/10/14;
Commitment Order, 3/10/14; Sentencing Transcript, 3/10/14. For his other two counts, aggravated robbery
simple robbery, Petitioner was sentenced to twenty-five years at hard labor and seven years at hard labor,
respectively. Id. The Court ordered all of Petitioner’s terms to run concurrently. Id.
9 State Rec., Vol. 1 of 4, Uniform Application for Post-Conviction Relief and Memorandum in Support of
Petition. Federal habeas courts must apply Louisiana’s “mailbox rule” when determining the filing date of
a Louisiana state court filing, and therefore, such a document is considered “filed” as of the moment the
prisoner “placed it in the prison mail system.” Causey v. Cain, 450 F.3d 601, 607 (5th Cir. 2006). The postconviction application made a part of the state record is dated January 6, 2015.
10 State Rec., Vol. 3 of 4, State v. Adams, 15-KH-467 (La. App. 5 Cir. 9/17/15) (unpublished).
11 State Rec., Vol. 4 of 4, La. Supreme Court Writ Application, 15 KH 1897, 10/16/15 (dated 9/30/15).
12 State ex rel. Adams v. State, 2015–KH–1897 40 (La. 12/16/16), 207 So. 3d 10 (per curiam).
13 R. Doc. 1.
14 Id.
15 Id.
16 R. Doc. 12

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Magistrate Judge North concluded Petitioner is not entitled to federal habeas corpus relief
on either claim. 17 Petitioner filed a timely notice of objection on September 27, 2017. 18
ANALYSIS
A. Standard of Review
In reviewing the magistrate judge’s Report and Recommendations, the Court must
conduct a de novo review of any of the magistrate judge’s conclusions to which a party has
specifically objected. 19 As to the portions of the report that are not objected to, the Court
needs only review those portions to determine whether they are clearly erroneous or
contrary to law. 20
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
federal court must defer to the decision of the state court on the merits of a pure question
of law or a mixed question of law and fact unless that decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 21 A state court’s decision is contrary to clearly
established federal law if: “(1) the state court applies a rule that contradicts the governing
law announced in Supreme Court cases, or (2) the state court decides a case differently than
the Supreme Court did on a set of materially indistinguishable facts.”22 Further, AEDPA
requires that a federal court give state trial courts substantial deference. 23

Id.
R. Doc. 13.
19 See 28 U.S.C. § 636(b)(1) (“[A] judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which an objection is made.”).
20 Id.
21 28 U.S.C. § 2254(d)(1).
22 Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003)).
23 Brumfield v. Cain, 135 S.Ct. 2269 (2015).
17

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B. Ineffective Assistance of Counsel
In his petition, Petitioner contends his trial counsel’s performance was ineffective.
He argues, inter alia, that his trial counsel failed to sufficiently investigate evidence. 24
According to Petitioner, had his counsel investigated sufficiently, she would have noted that
the victim refused medical treatment, 25 which Petitioner argues demonstrates he did not
actually harm her. 26 Additionally, Petitioner contends his counsel should have conducted
additional investigation when the prosecution determined there was not enough evidence
to charge Petitioner with rape and instead charged him with attempted rape. 27 Lastly,
Petitioner argues that counsel was ineffective for not filing certain pre-trial motions on his
behalf, including a motion to suppress his custodial statements. 28
In Strickland v. Washington, the U.S. Supreme Court explained that, to prevail on
an ineffective assistance of counsel claim, a petitioner must show his (1) counsel’s
performance was deficient and (2) that deficient performance prejudiced the petitioner. 29
Regarding a guilty plea, a petitioner must prove there is a reasonable probability that, but
for counsel’s errors, petitioner would not have pleaded guilty. 30 Additionally, counsel “has
a duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” 31 Courts must give counsel heavy deference when
reviewing counsel’s decision to not investigate. 32

R. Doc. 1.
Id.
26 Id.
27 Id.
28 Id.
29 Strickland v. Washington, 466 U.S. 668 (1984).
30 Hill v. Lockhart, 474 U.S. 52, 59 (1985).
31 Strickland, 466 U.S. at 691.
32 Id.
24
25

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In this case, Magistrate Judge North recommended this Court deny Petitioner relief
because Petitioner failed to prove his counsel’s performance was ineffective. 33 This Court
agrees with the magistrate judge’s recommendation.
First, contrary to Petitioner’s assertion, Petitioner’s counsel did not fail to investigate
the charges against him. Rather, the record indicates counsel actively participated in
discovery. Petitioner offers nothing to support his claim that counsel inadequately
investigated any evidence. 34 Petitioner largely challenges his counsel’s failure to further
investigate the prosecution’s evidence, or lack thereof, following the prosecution’s decision
to charge Petitioner with attempted aggravated rape instead of aggravated rape. Petitioner
apparently argues that, if his counsel had investigated further, the evidence would have
demonstrated Petitioner did not actually rape the victim. 35 As Magistrate North explained
in his report, Petitioner was charged with attempted aggravated rape; 36 therefore, any
evidence he claims counsel should have discovered to show a rape did not occur is
irrelevant. 37 Moreover, Petitioner’s claim he was prejudiced by counsel’s failure to further
investigate evidence is legally erroneous, as “the victim’s testimony alone, if believed by the
trier-of-fact, is sufficient to convict a defendant of a sexual offense.” 38 Thus, even if
counsel’s performance was deficient, Petitioner was not prejudiced thereby.
Second, Petitioner’s argument that his counsel was ineffective for not filing motions
to suppress certain evidence is meritless. The record indicates counsel filed various pretrial
motions, including motions to suppress Petitioner’s statement, the evidence gathered, and

R. Doc. 12.
Id.
35 R. Doc. 1
36 R. Doc. 12.
37 Id.
38 R. Doc. 12; see State v. Alexander, 119 So. 3d 120, 126 (5th Cir. 2013).
33

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the victim’s identification of Petitioner. 39 Counsel’s motion to suppress Petitioner’s
custodial statements was not ruled only because Petitioner accepted the plea bargain on the
day the motion was set for submission. 40 Petitioner’s statement to the police
notwithstanding, the evidence against Petitioner with respect to this claim is substantial.41
Thus, Petitioner is not entitled to federal habeas corpus relief on his ineffective assistance
of counsel claim.
C. Factual Findings
In his objection to Magistrate North’s Report and Recommendation, Petitioner
largely challenges the state district court’s factual findings. 42 Specifically, Petitioner
challenges two of the state district court’s conclusions of fact: (1) that Petitioner’s DNA
being found on the victim supported his conviction for attempted rape and, (2) that his
statement to the police was reliable, despite his drug use. 43 Petitioner also asserts that his
conviction was based on “conflicting statements.” 44 Petitioner asserts that the 911 call, the
police report, and the victim’s statement say the victim was raped, but that Petitioner was
only charged with attempted rape. 45 Petitioner also disputes the state’s conclusion that
Petitioner had the intent to rape the victim. 46 Rather, he contends that he only entered the
home to rob the victim. 47

State Rec., Vol. 1 of 4, Omnibus Motions, 5/6/13.
R. Doc. 12.
41 Id. Petitioner also asserts counsel only filed single motion to determine competency and that she was not
present at preliminary examination because Attorney Raul Guerra was originally assigned the case. R. Doc.
13. However, the record shows that counsel filed various pretrial motions and, additionally, cannot be
considered ineffective before having been assigned the case. As counsel had no nonfrivolous grounds to file
the additional motions suggested by Petitioner, the Court finds counsel was not ineffective for failing to do so.
42 R. Doc. 13.
43 Id.
44 Id. at 6.
45 Id.
46 Id.
47 Id. at 5.
39

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The Court must defer to the state court’s factual findings unless the state court’s
decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 48 In this case, the Court finds the state court’s
factual findings are reasonable. 49 As a result, the Court finds Petitioner is not entitled to
federal habeas corpus relief on this claim.
D. Guilty Plea
Petitioner also claims his guilty plea was involuntary. Petitioner argues he was
pressured by counsel and threatened with a longer sentence to accept the plea. 50 In
Magistrate Judge North’s Report and Recommendation, Judge North concluded Petitioner
is not entitled to federal habeas corpus relief on these claims. 51 As Magistrate North
explained in his report, “[A] guilty plea will be upheld on habeas review if entered into
knowingly, voluntarily, and intelligently.” 52 The record shows the plea was voluntary. 53
Petitioner signed a written waiver of his rights and denied being coerced to enter the guilty
plea in open court. 54 Petitioner failed to produce any evidence suggesting his guilty plea
was coerced or that the statements he made during the plea colloquy were untrue. 55
Additionally, Petitioner’s claim that he was pressured to plead guilty due to threats
of a longer sentence is meritless. Threats of a longer or more severe sentence are

28 U.S.C. § 2254(d)(2).
Petitioner, in his opposition, also claims the pre-trial motions were filed by two different attorneys.
However, this fact does not provide the Petitioner relief. Petitioner offers no additional evidence to support
any other claims of ineffective assistance by counsel, nor does he offer any evidence he would not have entered
a guilty plea but for counsel’s alleged deficiencies. R. Doc. 12.
50 R. Doc. 1.
51 R. Doc. 12.
52 Montoya v. Johnson, 226 F.3d 399, 405 (5th Cir. 2000) (citing James v. Cain, 56 F.3d 662, 666 (5th Cir.
1995)); R. Doc. 12.
53 R. Doc. 12.
54 Id.
55 Id.
48
49

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permissible and do not amount to unconstitutional coercion. 56 In fact, counsel had a duty
to inform Petitioner of possible maximum sentences. 57 As Petitioner was a fourth-felony
offender, any discussion between Petitioner and counsel regarding a possible life sentence
was not misleading or coercive. 58 As a result, the Court finds Petitioner is not entitled to
federal habeas corpus relief on his claim of an unconstitutionally obtained guilty plea.
The Court, having considered the record, the applicable law, relevant filings, and the
magistrate judge’s Report and Recommendation finds the magistrate judge’s findings of
fact and conclusions of law are correct and hereby approves the United States Magistrate
Judge’s Report and Recommendation and ADOPTS it as its opinion in this matter. 59
Accordingly;
CONCLUSION
IT IS ORDERED that Petitioner Kenneth Adams’ petition against Respondent
Keith Deville be and hereby is DISMISSED WITH PREJUDICE. 60
New Orleans, Louisiana, this 10th day of August, 2018.

_____ _____________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Id.; see also Bordenkircher v. Haynes, 434 U.S. 357 (1978).
R. Doc. 12.
58 La. Rev. Stat. § 15:529.1(A)(3)(b); La. Rev. Stat. § 15:529.1(A)(4)(b).
59 Id.
60 Id.
56
57

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